2014 (3) TMI 404 - AT - Income Tax

Computation of STCG and LTCG - Purchase and sale of shares through PMS - Whether the CIT(A) has erred in confirming the action of the AO in assessing short term capital gains & long term capital gain earned by the appellant on sale of shares and securities through Portfolio Management Services under the head Income from Business or Profession Held that - The decision in Shri Nalin Pravin Shah, Shri Manan Nalin Shah Versus Addl. Commissioner of Income Tax 2014 (1) TMI 708 - ITAT MUMBAI followed - PMS Manager was authorized to purchase, acquire, obtain, take, hold, sell, transfer, substitute or change all or any of the investments made on behalf of the assessee - PMS Manager was also authorized to hold all or any of such investment in his name or at his discretion on behalf of the assessee and make every effort to maximize the value of investment - The PMS Manager was required to provide the assessee with quarterly statement of investment - the PMS Manager had sole and absolute discretion to make investment for and on behalf of the assessee and the assessee had no role to play - The assessee had not taken any borrowed funds for placing money with the PMS Manager - the average holding period of the shares was more than two months - the income earned from PMS has to be assessed as capital gain - STCG earned by assessee and LTCG earned by assessee on sale/purchase of shares and securities through PMS is to be assessed under the head capital gains and not as business income of the assessee - the department has not been able to bring any distinguishing facts thus, the order is liable to be set aside. Sale of shares - Income from business or income from capital gains - Whether the CIT(A) has erred in assessing the short term capital gains and long term capital gain earned by the appellant on sale of shares and securities carried out independently under the head Income from Business or Profession - Held that - The treatment in the books of an assessee will not be conclusive and if the volume, frequency and regularity at which transactions are carried out indicate systematic and organized activity with profit motive then it becomes business profit and not capital gains Whether a particular holding is by way of investment or form part of stock-in- trade is a matter within the knowledge of the assessee and it is for the assessee to produce evidence from the records as to whether he maintained any distinction between shares which are held as investment and those held as stock-in-trade - The important factor is the intention of the assessee at the time of purchase, which has to be gathered from the actual conduct of the assessee while dealing with the shares subsequently and not only on the basis of entry in the books of account Decided in favour of Assessee.

Issues Involved:

1. Classification of gains from sale of shares and securities through Portfolio Management Services (PMS) as "Income from Business or Profession" versus "Capital Gains."
2. Treatment of short-term and long-term capital gains from independently carried out share transactions.
3. Alleged conversion of shares from "investment" to "stock in trade."
4. Observations regarding the portfolio manager's record-keeping and investment activities.

Issue-wise Detailed Analysis:

1. Classification of Gains from PMS:

The primary issue in these appeals was whether the gains from the sale of shares and securities through Portfolio Management Services (PMS) should be classified under "Income from Business or Profession" or as "Capital Gains." The assessees contended that these gains should be assessed as "Capital Gains," while the Assessing Officer (AO) and the Commissioner of Income Tax (Appeals) [CIT(A)] classified them as "Income from Business or Profession."

The Tribunal observed that in earlier assessment years, similar issues had been decided in favor of the assessees by the Tribunal. The Tribunal had previously concluded that the nature of PMS is such that investments made by the assessee cannot be considered a scheme of trading shares and stocks, and therefore, the profits should be assessed under the head "Capital Gains." This conclusion was based on the fact that the PMS Manager had sole discretion over investments, and the assessees did not use borrowed funds for these investments. The Tribunal followed its earlier decisions and held that the gains from PMS should be assessed as "Capital Gains."

2. Treatment of Short-term and Long-term Capital Gains from Independent Transactions:

The second issue was whether the short-term and long-term capital gains from independently carried out share transactions should be classified as "Income from Business or Profession" or "Capital Gains." The Tribunal noted that in earlier years, the department had accepted these transactions as investments and assessed the gains as "Capital Gains." The Tribunal emphasized that each case must be examined based on its facts, considering factors such as the volume, frequency, and holding period of the transactions.

The Tribunal found that the assessees had not borrowed funds for these transactions and had held the shares for a significant period. The Tribunal concluded that the transactions were in the nature of investments, and the gains should be assessed as "Capital Gains." The Tribunal reversed the orders of the CIT(A) and directed that the gains should be assessed under the head "Capital Gains."

3. Alleged Conversion of Shares from "Investment" to "Stock in Trade":

The CIT(A) had observed that the assessees had allegedly converted shares of Financial Technologies and Henkel Spice from "investment" to "stock in trade." The Tribunal found that this observation was contrary to the facts on record. The Tribunal noted that the shares were held for a significant period and had already been considered as investments in earlier assessment years. The Tribunal reversed the CIT(A)'s finding and held that the gains from these shares should be assessed as "Capital Gains."

4. Observations Regarding Portfolio Manager's Record-keeping and Investment Activities:

The CIT(A) had made several observations regarding the portfolio manager's record-keeping and investment activities, suggesting that these activities indicated a business activity. The Tribunal found these observations to be contrary to the facts of the case. The Tribunal reiterated that the nature of PMS is such that the investments made by the assessees cannot be considered a scheme of trading shares and stocks. The Tribunal held that the gains from PMS should be assessed as "Capital Gains."

Conclusion:

The Tribunal allowed the appeals of the assessees, holding that the gains from PMS and independently carried out share transactions should be assessed as "Capital Gains" and not as "Income from Business or Profession." The Tribunal reversed the orders of the CIT(A) and directed that the gains should be assessed under the head "Capital Gains." The appeals of the assessees were allowed in their entirety.

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